An often-repeated argument by those opposing equally shared parenting is “every family is different so judges need discretion in order to look out for children’s best interests” and “you can’t use a cookie-cutter approach to dealing with families.” Yet the vast majority of contested cases are in essence a default, “cookie-cutter” parenting plan of every other weekend and one evening a week for the parent who the court deems “non-custodial.”
This, despite Iowa law that reads “The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.” (emphasis added) Most reasonable people would not consider four days and four evenings a month to be “liberal” or “maximum,” yet this is how the courts have “interpreted” this law.
Courts who are charged with looking out for the best interest of our children are also extremely hesitant to change custody orders even if it is later shown that its original decision may have been in error, or if a shared parenting plan would have suited the family better as research confirms. In many cases, judges will even admit that it does not matter what the court knows, even if a parent is hurting their children such as keeping the children from their other family, causing parental alienation (also see ACES factors). Once the court has made a decision on custody (right or wrong), it is more than likely those children will never regain connections they once had with half of their family.
All that a judge needs to say is that in their “opinion” there has not been a substantial change in circumstance (because like “the best interest of the child” there is no definition on what constitutes “a substantial change in circumstance”), and the court can ignore literally anything in the case before him or her. (Click here for some suggestions to help protect yourself in your testimony until better laws are in place like SF571.) Without better laws like SF571, a law that would prevent judges from awarding children to a dangerous offender, currently even if there is overwhelming evidence that a parent is denying contact with the other parent, making terrible decisions (including bringing potentially dangerous partners into the children’s lives), or even neglecting the children, there is no requirement of any judge to do anything, they can just throw it out and claim “no change in circumstance.”
Most people assume judges would do the right thing in these circumstances but when their decisions are based on the misguided assumption that children are best off when they live in one household and visit the other, it is impossible for them to be unbiased and protect the rights of families to see each other freely instead of finding a “winner” in each case. Iowa’s proposed bill SF571 resolves this problem.
Every parent going to court for custody issues in Iowa is required by the court to attend a training called “children in the middle.” In this training, they describe how harmful it is to children when parents fight. It is explained that parents need to put aside their differences for their children’s sake, and yet the entire process of child custody requires parents to attack each other in court in order to find the “better parent.”
In fact, very aggressive tactics (such as insinuations or outright false allegations of abuse or neglect) are often used to destroy the other parent’s character in order to “win” because the level of evidence required for a judge to make a determination on child custody between two parents is so low (a “preponderance of evidence”) that practically anything can pass for truth, and perjury is rarely punished in these hearings.
When I was in law enforcement, the guiding principle was that regardless of the crime, the accused had rights. In other words, before anyone could lose their freedoms, they had a right to due process. This due process included proving “beyond a reasonable doubt” that the individual charged with a crime actually committed it. So I can go into the first convenience store I find and walk out with as much merchandise as I can carry and even if I get caught red-handed, the state must prove beyond a reasonable doubt that I actually committed this crime.
On the other hand, if my ex-partner with whom I had children with decides they want to deny me time with my children, all that’s required is for them to file a modification with the county court and I have no choice but to appear and fight for time with my children. In this “trial” (and I use this term loosely because it resembles nothing that most people understand as a trial), anything can be used as “evidence,” even the most outrageous claims are taken under consideration and since the level of evidence required to substantiate these claims is the lowest of any court proceedings, pretty much anything can be used by the judge to make his/her decision which more often than not, ends up with one parent getting a large majority of time with the children while the other parent is reduced to a few days a month even with no wrongdoing on the part of the losing party.
How is this possible that in 2020 there can be such a system that sounds like something from the middle ages? Today’s child custody laws circumvent supreme court opinions establishing the fundamental rights of parents, by creating a new term called “physical care.” All supreme court cases dealing with government infringement on parental rights refer to parenting as “custody” because in child welfare cases, (and in real life) there is no “physical care,” you either have “custody” (and rights) or you don’t, but, by adding a new term called “physical care,” the courts can now say that all divorced parents have “shared custody” of their children but in reality, they are infringing on parent’s rights as defined by the US supreme court.
No reasonable person would believe that a parent with “custody” of their child should only see their child four days a month, but this is exactly what the courts are doing every day in contested custody cases. What if tomorrow, the state of Iowa passed a law that restricted the amount of time law-abiding people could spend speaking or associating with others? In order to do this, we will say that everyone has freedom of speech, but “in the best interest of the country,” judges are allowed to limit the amount of time some people can associate with others. Everyone still had “freedom of speech,” but now there was another level called “visiting time” that could be regulated while continuing to claim that everyone still had “freedom of speech.” Because after all, “it's the quality of time spent associating not the quantity.”
All it would take is an individual to file a civil motion with the court. If someone disagreed with someone else's political opinion or religious belief, the “respondent” would have to go to court and defend their freedom to express themselves. The burden of proof for the court to deny this individual would be a preponderance of the evidence. The “petitioner” could make the most outrageous arguments and accusations in court, and it would be up to the judge, in that case, to decide if they wanted to believe that individual or not. The court would then have to pick a winner and loser, the winner would be free to speak and express themselves at will, but the loser would have his or her “visiting days” limited to every other weekend.
This is today's “family court.” This is what happens with children and the time they get to spend with each of their parents after separation.
In order to restore the rights of parents and children, the standard for deciding “physical care” must be the same as the standard that decides “custody” of children. Without that it leaves things open for more fighting for a “winner take all” court battle instead of protecting the rights of all involved, children and parents.
This is an update to the article, Children Deserve Better than a Cookie-Cutter Parenting Plan, a guest post, originally published on April 2, 2019, by Tom McDermott.
This article is a guest submission by Tom McDermott.
Tom McDermott is from Clinton, Iowa. He joined the Army right out of high school, and eventually retired from the National Guard after twenty years of service. During this time, he was also in law enforcement (fourteen years), resigning in 2016 for personal reasons.
Tom is now is a full-time advocate for equal parenting rights. He works diligently in that role except on days when he has his children. On those days, he devotes every minute to them being keenly aware of the limited time.
[DISCLAIMER: The opinions expressed in guest posts, are the personal opinions of the author. They may or may not reflect the views of Families United Action Network (FUAN) or its individual members. Note that submissions may have been edited for clarity.